Safety vs. privacy: New technology a boon to law enforcement, potential threat to civil liberties

PROVIDENCE — David A. Cooper remembers being one of the first lawyers in Rhode Island to bring a cell phone to court. He’d pull it out of his briefcase and step out into the hallway at the Licht Judicial...

PROVIDENCE — David A. Cooper remembers being one of the first lawyers in Rhode Island to bring a cell phone to court. He’d pull it out of his briefcase and step out into the hallway at the Licht Judicial Complex. People thought he was being a hotshot as he chatted on the clunky phone.

Little did he know that decades later cell-phone evidence would play a critical role in many criminal cases.

Cooper made waves in Rhode Island, and national headlines, last year after he convinced Superior Court Judge Judith Colenback Savage, after weeks of contentious hearings, to throw out almost all of the evidence in a murder case. Savage found that Cranston police had failed to obtain a search warrant before scrolling through the text messages of suspect Michael Patino and then using that information to question him.

Patino is accused of beating his girlfriend’s 6-year-old son, Marco Nieves, to death in 2009. Cooper contends that his client accidentally hurt the child while playing and that the mother failed to get prompt medical care.

Savage’s ruling is under appeal before the state Supreme Court.

The Patino case is one of many testing the often murky intersection between technology and the law. Courts throughout the country are considering the balance between public safety and privacy rights as new technology emerges.

[cooper-video]

From Cooper’s perspective, the law is playing catch-up as technology zooms ahead with few protections. He envisions a world not far off with drones peering into people’s lives, police watching from afar what people are viewing on their computers, and cameras everywhere. These advances are replacing the eyes and ears of what used to be legions of detectives.

That’s exactly what’s in play, according to Jeffrey Rosen, a law professor at George Washington University Law School. The Fourth Amendment provision that citizens be free from unreasonable searches of houses, persons, papers and effects is an uneasy fit in a digital age in which much surveillance is virtual, observes Rosen’s book “Constitution 3.0: Freedom and Technological Change.”

[privacy-poll1]

“Constitutional protections for privacy were drafted in an age when the most common way to invade privacy was for the state to break into someone’s home,” Rosen said.

“Speaking broadly, the best thing you can do for your private papers is to store them in a locked desk drawer and put the key in a safe place, rather than storing it in a digital cloud,” he said. “And that doesn’t make sense.”

Exactly what protections the Fourth Amendment extends to information stored online remains unclear, particularly given a doctrine that holds that a person does not have a reasonable expectation of privacy for information shared with a third party, Rosen said.

Law lags behind technology

State police Col. Steven G. O’Donnell points to the Boston Marathon bombing investigation in explaining the potential benefits of technological advances such as drones.

[odonnell-video]

“The technology’s great,” he said. “It would help law enforcement, as the world’s always changing, as we’ve seen.”

In his view, however, technology often gets ahead of law enforcement.

He praised a 2011 state law that he says caught police up with evolving technology as more crimes moved online. The law allows state police to get information about Internet users using an “administrative subpoena” that the state police colonel or the attorney general’s office can approve. Before its passage, police had to get a judge to sign off on multiple search warrants –– a time-consuming process.

Records show that in the five months after its passage, the Rhode Island State Police issued 112 subpoenas to Internet service providers. That information was used in 65 criminal investigations, ending in 24 arrests for crimes such as cyber-stalking and child pornography.

[privacy-poll2]

In 2012, the state police issued 168 such subpoenas. The information gleaned was used in 106 criminal investigations, ending in 22 arrests. Sixty-three of those investigations were closed without an arrest.

“It makes the process easier, and we’re protecting people better by doing it and doing it faster,” O’Donnell said.

Patino’s case is one of several in Rhode Island courts in recent years testing law enforcement’s use of technology in surveillance.

Earlier this year, lawyers for Jason Wayne Pleau asked that his statements to police after his arrest in New York City be thrown out because authorities had zeroed in on his location by tracking his cell-phone’s “pings” off cell sites without a warrant.

Prosecutors say Pleau fatally shot gas station manager David D. Main outside a Woonsocket bank on Sept. 20, 2010, and then fled to an apartment in the Bronx where the family of his pregnant girlfriend, Tanya Rivera, lived. They allege that Pleau was the masked gunman who shot Main in the back of the head and stole $12,500, which he split with two coconspirators.

Pleau argued that his responses to questioning by police after his arrest should be suppressed as “fruit of the poisonous tree” because authorities did not get a warrant to trace his cell phone signals. His lawyers recently retracted that motion to suppress for undisclosed reasons.

GPS challenges

Defense lawyer George J. West, too, has contested investigators’ use of global-positioning-system devices to track drug suspects. One case involved a suspected Nigerian heroin-smuggling organization operating in Rhode Island; a second case involved three men shipping cocaine into Rhode Island from the West Coast via tractor trailer. Federal agents claimed the men were linked to a Mexican drug cartel.

[west-video]

In both cases, West argued that evidence should be tossed because police had tracked the men by GPS without a warrant. U.S. District Court Judge William E. Smith struck down both challenges.

In the heroin-trafficking case, Smith concluded that the North Providence detective who attached the magnetized device to a car bumper had acted in good faith in not getting a warrant for the GPS, as he had reasonably relied on court precedent at the time.

North Providence Detective Robert DiFilippo installed pole cameras on Providence streets in 2010 to observe the heroin-trafficking suspects’ movements — as is allowed to by law without a warrant because people do not have a reasonable expectation of privacy on public streets. He placed a GPS device on a car and then watched an animated image of its travels on a map. At the time, he said, his department and the state police did not have a policy of seeking warrants before attaching a GPS device, and he did so with the approval of the U.S. Attorney’s office. Smith’s ruling in the case is under appeal before the 1st U.S. Circuit Court of Appeals.

In the cocaine-smuggling case, Smith found there was ample evidence, independent of the GPS tracking, for police to have secured a warrant to raid the North Kingstown storage facility used by the suspects.

The state police changed their policies after a U.S. Supreme Court ruling that the police must obtain a search warrant to install a GPS tracking device on someone’s private property.

Testing the limits

In Cooper’s view, law enforcement routinely uses technology to its advantage until being reined in by the courts.

[privacy-poll3]

“They’ll do what they can until they can’t,” Cooper said.

West, Cooper and the ACLU call on lawmakers to put “hard and fast” rules in place to preserve privacy protections.

It’s an opinion shared by U.S. Supreme Court Justice Samuel A. Alito Jr. In agreeing with the ruling that limits authorities’ use of GPS monitoring, Alito implored lawmakers to set guidelines as technology such as GPS makes long-term surveillance relatively easy and cheap.

“A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way,” Alito wrote.

George Washington University Law’s Rosen looks to the states. “States have been pioneers in protecting privacy,” he said.

Indeed, Rhode Island lawmakers are seeing a raft of bills this session aimed at limiting government intrusion. These include legislation setting up procedures for police use of drones, another bill requiring law enforcement to get a warrant to examine cell phone contents, and a third calling for a warrant to track cell-phone signals.

These measures garner support from criminal defense lawyers, privacy advocates and the Rhode Island affiliate of the American Civil Liberties Union.

[brown-video]

“Technology is way ahead of the law, and it’s privacy that’s getting a beating,” say Steven Brown, executive director of the state ACLU affiliate.

The Patino case shows the need for laws to guide law enforcement on technology, said Michael DiLauro, of the Rhode Island Public Defender’s Office.

Since Savage’s ruling in the Patino case, the state police always secure warrants before looking at a cell phone’s contents, O’Donnell said.

The attorney general’s office cautions the legislature to let the courts settle the issue, particularly given the pending Patino appeal. Governor Chafee vetoed a measure requiring police to get a warrant to examine cell-phone contents last year, saying the issue should be left to the courts.

Judges are best suited to settle issues involving criminal procedure, according to state Attorney General Peter F. Kilmartin.

[kilmartin-video]

“There will continue to be emerging technologies, and just as those technologies emerge, the courts will rule appropriately as to where it’s proper for a law-enforcement agency to get a search warrant and where it’s proper to act without the benefit of a search warrant,” Kilmartin said.

Delicate balancing act

State prosecutors had argued in the Patino case that police were compelled to look at and document the text messages out of concern that they might be remotely deleted.

Remote deletion arose in a case involving Barrington Police Sgt. Joseph Andreozzi. Authorities say he remotely deleted the contents of his Motorola Android phone while it was in state police custody after his arrest for sending threatening text messages to his ex-wife.

Two days after his Aug. 29, 2012, arrest, Andreozzi sought the help of the manager at the Verizon Wireless Zone store in Barrington to remotely “wipe” all the data from the phone after it was seized, police say.

[privacy-poll4]

He was charged with obstruction of justice, in addition to cyber-harassment and domestic disorderly conduct. He pleaded not guilty. His lawyer, John B. Harwood, did not respond to a request for comment.

Law-enforcement authorities caution lawmakers not to move too fast and unnecessarily hamper police, which they say could sacrifice public safety.

O’Donnell said he appreciates the give-and-take of the legislative process, but that the courts have the ultimate say.

“Courts interpret legislation, so what they say at the end of the day is what law enforcement goes by,” he said.

Some ask why increased surveillance should matter to law-abiding people with nothing to hide.

West thinks the issue should matter to everyone. He notes the prevalence of video cameras, as seen in the recent Boston Marathon bombing.

“There’s a lot of surveillance out there that we never had before,” he said. “The more the public gets used to this level of surveillance, … and the more that it doesn’t bother them … the less there’s going to be concern for protecting those rights in either the legislature or the courts.

“I think that the struggle is to continue to find a balance between what is needed to be secure but also what is important to be a free people,” West said.